In August 2008 we finally came to the state charges for rape, assault and witness tampering. The same issues of credibility were in play and the case was much easier for us as the more concrete evidence that killed us in the federal gun case were not relevant to the rape case. It was to be a classic he said/she said contest.
At first the case unrolled beautifully. The victim's lack of credibility was on full display. The state handed me a bonus early on when they forgot to ID the defendant as the perpetrator which is an essential element that the state has to prove. Then disaster struck.
My client began making noise about representing himself. I knew that if I raised the ID issue at the close of the state's case that the judge was likely to allow the State to reopen to prove the case. I also believed that the judge knew that the ID had not been approved based on some discussion during an ex parte discussion in chambers (done with state approval). The reason for the ex parte discussion was to discuss my client's increasingly difficult behavior and the possibility of him representing himself.
When we came back in I made a tactical decision that I had to raise the ID issue and do a premature motion to acquit rather than have the client throw it away by confronting witnesses directly himself. I did so and the judge agreed state was allowed to reopen. I was fired shortly after. My client began to question our shortest simplest witness and seemed to realize he was over his head and so rehired me. The ID issue was gone.
We proceeded through the rest of our witnesses and we were still doing well on the merits. The client made a last minute decision to represent himself. As I called his name he swept about 100 pounds of paper from the defense table and threw the table toward the bench. The client was tackled by four bailiffs and the jury was evacuated. I moved for a mistrial but the prosecutor was prepared with a copy of the federal judge's order denying my mistrial motion in the Federal gun case when the client had a lesser outburst in front of that jury. The state judge accepted the order as precedent.
At closing, I argued the credibility issues described in my previous post on the federal gun charges. Amazingly, the jury was out for over four hours (not the 5 minutes everyone anticipated after the outburst). Several notes indicated that they were hung on the rape charge although it became apparent that they agreed on the assault charge early on. Finally they came back guilty on all counts.
In sum, due to the client's lack of control we threw away a guaranteed win on the ID issue, a probable win on the merits and any hope of a lenient sentence (yet to be determined).